Existing law surrounding anticircumvention already singles out game consoles as deserving special protection. i.e. the Copyright Office made it explicitly legal to circumvent the iPhone's DRM in order to install otherwise legal software, but they refused to extend this to game consoles. While you are technically correct that we should be treating game consoles the same as smartphones, in practice the industry treats game consoles as a locked down box to handcuff users with while smartphones are not.
I suspect if half the console market was unlocked ala the Steam Deck, the EU would be pushing for the other half to also be unlocked, too.
We also have to keep in mind that Epic sued Apple, not Microsoft, Sony, or Nintendo. A lot of monopoly maintenance involves obfuscating the business relationships that make the monopoly work. i.e. Apple doesn't report how much money they make from the App Store[0] because that information would be very useful to regulators looking to undo their monopoly. The discovery on the Apple lawsuit published a lot of this previously hidden information. In other words, the EU had Apple land on their plate ready to cook and serve.
Epic will not sue their console partners. The damage to their business would actually be a lot worse: instead of merely seeing Fortnite taken off the various console stores, the console manufacturers would be sending repo men to take away all the devkits Epic uses to test Unreal Engine, demanding they delete the console ports of the engine, and refusing to cert any new games using Unreal Engine, forcing all their partners to license different technology and rebuild their games from the ground up. It would be immediate and total financial suicide.
In other words, the console manufacturers are "getting away with it" because they had way more control over their niche than Apple did.
[0] Related note: there's an unenforced SEC rule that specifically forbids not reporting this information, to prevent monopolies from obfuscating their profit centers like this.
> take away all the devkits Epic uses to test Unreal Engine, demanding they delete the console ports of the engine, and refusing to cert any new games using Unreal Engine, forcing all their partners to license different technology and rebuild their games
I think this is a lil extreme. Even if Epic had some reason to sue the console makers, there are too many high profile and high grossing games (e.g. the next Witcher and Cyberpunk, Hogwarts Legacy, Star Wars Jedi series) for Sony/Microsoft to choose to completely ban Unreal. Imagine too: if one of them announces they will prohibit Unreal games, why won’t the other swallow their pride and become the console-exclusive platform for that title? Not even Apple has banned Unreal, and I can’t think of any big games on their store that use it.
> why won’t the other swallow their pride and become the console-exclusive platform for that title?
It depends on who's being sued and who isn't. Microsoft absolutely would swallow their pride here if it meant getting one up on Sony, if only because the Xbox is already partially open anyway[0] and the Xbox business is significantly hurting right now. Reverse the roles, however, with Microsoft being sued, and they absolutely would respond by trying to disable Epic's access to the Xbox platform and to other Xbox developers. Sony would not do Epic any favors here either and probably would stand in solidarity with Microsoft - because they have nothing to gain and everything to lose.
Remember: the console business is about handcuffing users and developers; Epic's lawsuit goes against that. We actually know a lot about Epic's communications with the console manufacturers as a result of the Epic v. Apple lawsuit[1]. They were worried that the "direct payments" stunt was going to eat into microtransaction profits, because Epic had applied the discount you got on V-Bucks to consoles as well as iOS. Epic also kept the both the lawsuit and their lobbying from including videogame consoles, because of the possibility that it would impact the Unreal business.
For what it's worth, Apple actually did try to get Epic's Unreal division banned from iOS, but was stopped by the judge in the Epic v. Apple case. Apple also has tried to regulate what frameworks app developers are allowed to use in the past. Back a decade and change ago, Adobe shipped Flash Packager for iPhone to allow Flash developers to ship SWFs as iPhone apps. Apple changed their developer agreements to specifically require all apps be "originally written" in Objective-C, C/C++, or JavaScript; so they'd have cover to reject Flash apps. They backed down a few months later only because the Obama-era DOJ actually threatened to sue, which is why you've probably used a ton of Flash games on your iPhone without even knowing.
[0] To be clear, you can get access to the Shared partition to run software on but you cannot access the Exclusive partition without a devkit.
[1] Because Apple was trying to prove that the lawsuit was a stunt and that Epic was suing over a very normal business practice everyone else in the business embraced wholeheartedly
I suspect if half the console market was unlocked ala the Steam Deck, the EU would be pushing for the other half to also be unlocked, too.
We also have to keep in mind that Epic sued Apple, not Microsoft, Sony, or Nintendo. A lot of monopoly maintenance involves obfuscating the business relationships that make the monopoly work. i.e. Apple doesn't report how much money they make from the App Store[0] because that information would be very useful to regulators looking to undo their monopoly. The discovery on the Apple lawsuit published a lot of this previously hidden information. In other words, the EU had Apple land on their plate ready to cook and serve.
Epic will not sue their console partners. The damage to their business would actually be a lot worse: instead of merely seeing Fortnite taken off the various console stores, the console manufacturers would be sending repo men to take away all the devkits Epic uses to test Unreal Engine, demanding they delete the console ports of the engine, and refusing to cert any new games using Unreal Engine, forcing all their partners to license different technology and rebuild their games from the ground up. It would be immediate and total financial suicide.
In other words, the console manufacturers are "getting away with it" because they had way more control over their niche than Apple did.
[0] Related note: there's an unenforced SEC rule that specifically forbids not reporting this information, to prevent monopolies from obfuscating their profit centers like this.